| People v Thomson |
| 2007 NY Slip Op 09624 [46 AD3d 939] |
| December 6, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Mark T.Thomson, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Allegra R. Edelman, Law Intern), forrespondent.
Kane, J. Appeal, by permission, from an order of the Supreme Court (Teresi, J.), enteredDecember 8, 2006 in Albany County, which denied defendant's motion pursuant to CPL 440.10to vacate the judgment convicting him of the crimes of attempted murder in the first degree,attempted assault in the first degree (four counts) and reckless endangerment in the first degree,without a hearing.
Defendant was charged in a 13-count indictment stemming from an incident where he stole adelivery truck, led the police on a chase and drove the truck into a line of police cars. Heoriginally pleaded guilty to attempted murder in the second degree and was sentenced to12½ to 25 years in prison. On appeal, this Court vacated his plea (279 AD2d 644 [2001]).Following his rejection of a new offer to plead guilty to four counts of attempted assault in thefirst degree with an aggregate sentence of 8 to 16 years, defendant was convicted at a nonjurytrial of the crimes of attempted murder in the first degree, attempted assault in the first degree(four counts) and reckless endangerment in the first degree. Defendant was sentenced toconcurrent prison terms of 16 years to life for the conviction of attempted murder in the firstdegree, 5 to 10 years for each conviction of attempted assault in the first degree and 2 to 6 yearsfor the conviction of reckless endangerment in the first degree. This Court affirmed thoseconvictions (13 AD3d 805 [2004], lv denied 4 NY3d 836 [2005]). Supreme Court denieddefendant's subsequent CPL 440.10 motion to vacate the judgment, without a hearing. Defendantnow appeals, claiming that [*2]he was denied the effectiveassistance of counsel.
We affirm. To establish an ineffective assistance claim under the US Constitution, adefendant is required to show a " 'reasonable probability' that 'but for counsel'sunprofessional errors, the result of the proceeding would have been different' " (Mask vMcGinnis, 233 F3d 132, 140 [2000], cert denied 534 US 943 [2001], quotingBoria v Keane, 99 F3d 492, 496 [1996]; see Pham v United States, 317 F3d 178,182 [2003]). Under New York law, courts must view a case in its entirety to determine whetherthe defendant received meaningful representation (see People v Baldi, 54 NY2d 137, 147[1981]), and the defendant must show that he or she was prejudiced by counsel's errors (seePeople v Williams, 299 AD2d 580, 580 [2002], lv denied 99 NY2d 621 [2003];People v Frascatore, 200 AD2d 860, 861 [1994]).
Here, defendant contends that he was prejudiced by counsel's failure to ascertain that a priorNew Jersey conviction did not constitute a predicate felony, because both the People and defensecounsel considered him a second felony offender during plea negotiations. By affidavit, counseladmitted that defendant asserted that he was not a predicate felon, counsel made only a cursorycheck to confirm this prior to plea negotiations and he only confirmed defendant's assertion aftertrial. Counsel's failure to verify defendant's criminal history prior to plea negotiations constitutedinadequate legal assistance (see People vGarcia, 19 AD3d 17, 18 [2005]).
Acknowledging counsel's error, we must also determine whether there is a reasonableprobability that, but for this error, the result would have been different (see Mask vMcGinnis, 233 F3d at 140; People v Williams, 299 AD2d at 580). To establish suchprejudice, defendant must show that the People would have offered a plea deal more favorablethan their offer of an aggregate prison term of 8 to 16 years if they had been aware of his actualstatus and, if such a deal were offered, defendant would have pleaded guilty (see People vGarcia, 19 AD3d at 20-21). Defendant does not present any evidence that the People wouldhave offered a more favorable plea had his true status been known, instead merely relying on theassumption that first-time violent offenders will always receive more favorable plea offers thanpredicate offenders. As there is no evidence that the People based their plea offer on the beliefthat defendant was a predicate offender (compare id. at 21; Mask v McGinnis,233 F3d at 141), we are unpersuaded that a change in his status would have led to a morefavorable plea offer, especially considering the serious nature of the charges here. Significantly,in Garcia and Mask, the People were offering the lowest sentences availablebased upon the defendants' incorrect prior criminal records, and indicated a willingness tonegotiate lower sentences if possible. Here, the People were offering mid-range sentences on twocounts of the indictment, with no record indication of a willingness to negotiate further within thepermissible sentencing range.
Defendant also failed to present objective evidence that, if given the opportunity, he wouldhave accepted a more favorable plea offer (see United States v Gordon, 156 F3d 376, 381[1998]). Defendant relies solely upon his own self-serving affidavit in which he states that had amore favorable offer been extended, he "would have considered [it]." While there is no recordevidence as to what sentence defendant would have been willing to accept, based on the chargeshe faced it is unlikely that there would have been a significant disparity between an offer madewith knowledge that defendant was a first-time felon and the 8- to 16-year term that he wasoffered (cf. Mask v McGinnis, 233 F3d at 142). As defendant rejected an offer of 8 to 16years in prison and was willing to go to trial facing a term with a maximum of life imprisonment,and he failed to provide a definitive statement as to what sentence he would have accepted, weare [*3]not convinced that defendant would have accepted a morefavorable offer had it been made. Thus, we cannot find that counsel's misconception during pleanegotiations caused defendant any prejudice.
Crew III, J.P., Peters, Mugglin and Rose, JJ., concur. Ordered that the order is affirmed.